Contracts for Creative Freelancers: Should You Do Work For Hire? | Katie Lane | Skillshare

Contracts for Creative Freelancers: Should You Do Work For Hire?

Katie Lane, Attorney & Negotiation Coach

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9 Lessons (29m)
    • 1. Introduction

      2:09
    • 2. What "Work for Hire" Is

      3:22
    • 3. How Work For Hire Happens

      3:58
    • 4. When You're An Employee

      3:59
    • 5. When You're A Contractor

      3:54
    • 6. How It Shows Up In Contracts

      4:32
    • 7. Protect Yo'Self!

      3:17
    • 8. Is Work For Hire Good For Anything?

      1:34
    • 9. Final Thoughts

      1:58

About This Class

This is lesson #2 in a series.

What the heck does it mean when a contract says you’re doing your work as a “work for hire”?

Very simply it means you won’t own the copyright to the work you create.

But what does that mean mean?

Does that mean you can’t use the work in your portfolio?

Does it impact what you’ll get paid?

Is it always a horrible, very bad, no good situation?

In this class you’ll learn:

  • The legal meaning of “work for hire”
  • When “work for hire” applies and how to recognize it
  • What you can do to protect yourself if your day job is similar to your creative work; and
  • What kinds of projects “work for hire” is good for (and what it’s not!)

We'll also dig into some of the things that can be tricky on "work for hire" jobs: getting paid, using the work in your portfolio, and making sure the terms only apply to the work you are OK not owning. 

This class is designed for creative freelancers of all experience levels, but has helpful, practical information anyone doing creative work can use.

This class focuses on U.S. Copyright law and the issues that commonly arise in U.S. based contracts. 

Don't miss the other Contracts for Creative Freelancers classes: How to Fix Bad Contract Terms and Payment Terms: The Good, The Bad, The Ugly.

Credits for all images and music used in this class are contained in a PDF in the Class Project section. The PDF contains links to each image and the music track used. 

Transcripts

1. Introduction: Hi, I'm Katie Lane. I'm an attorney and negotiation coach that works with artists and freelancers to help them protect their rights and get paid fairly for the work that they dio. Since there are so many more creative freelancers than I could work with at any one time, I've created a series of classes here on skill share to help you feel more comfortable when you have to deal with contracts for your work. If you miss the first lesson, there's a link to it in the class description below. But you don't need it to be able to enjoy and get a lot out of this particular lesson, which is all about work made for hire, what that phrase means from a legal perspective, how it can come up, how it can affect your work and, most importantly, how you can protect yourself whenever you agree to do work for hire. But before we jump into everything, I have two quick, very important clarifications. The first is this class is focusing on US copyright law and how contracts that are governed by U. S. Law will function. If you're from outside of the U. S. You may still find some helpful tips and tricks in this particular class. But how the law works in your country will be a little bit different and second, very important. I am a lawyer, but this is not legal advice. It's not legal advice because I can't know what your specific situation is, and I would use that information to give you advice if we were working together instead. This is legal education. It's designed to help you better understand the law and identify how it can affect you and your work. If you need legal advice, it's always best to talk to a lawyer and preferably not one on the Internet. The videos in this class are a combination of videos like this, me talking to you, images related to the topic that we're discussing and slides that call out particular details and specifics. If contracts or the law intimidate you, not toe worry, you're not gonna have to dig into any of that on your own. All right, you ready to learn all about the weird, wacky world of work for hire? Let's do this 2. What "Work for Hire" Is: work for hire is a term that many creative professionals easily recognize. Chances are you have a teacher or a colleague who warned you never, ever, ever, to agree to work for hire terms. But what does it mean exactly? Work for hire is a shortened version of the legal phrase work made for hire. The term comes from the US Copyright Act, and it describes an exception to how copyright normally works in the United States. Copyright protection applies automatically as soon as the work is created. It's protected by copyright, and that copyright belongs to you. Copyright automatically belongs to the person who created the work. The work has to be original. Basically, you didn't steal it from somebody else, and it has to be fixed in a tangible medium of expression. That means it's captured in paper or a computer file or on video. There's a way for other people to perceive it and copy it. But as soon as you meet those two criteria, the copyright belongs to you. Because of this, I think of copyright as auto magic. You create an original work and bam, you've got copyright protection. Work for hire is an exception to this process instead of the creator owning the copyright to the work. The person who hired the creator to make the work owns the copyright. It's likely just inserted themselves into the automatic process. This means that when you agree to do work as a work made for hire, the client owns the copyright to the work as soon as it's created. The copyright isn't transferred from you to the client. The client owns it from the very beginning automatically. So why does that matter? What does it mean? Toe own the copyright to a work. As the copyright owner, you have the legal right to control who can use the work and how they can use it. Specifically, you can control if and how the work is copied, distributed, performed or displayed. And probably most importantly, you can control who gets to make things based on that work. For example, if you create a comic and you're the copyright owner, you get to determine who can make a translation of your comic, who can turn the comic into a TV show or a movie. You even get to control who is allowed to write a sequel to that comic. All of these things air derivative works and the copyright owner gets to control who can make them. So when a work is a work for hire, that means you as the creator, don't inherently have a right to use the work because you're not the copyright owner. That also means that if the client doesn't pay you, you don't have the ability toe prevent them from using the thing that you made for them because they're the copyright owner. As scary as that might sound, work for hire is actually totally okay as long as you're protected. And that's what we're going to spend the rest of this class really digging into, how to make sure that you're protected when you do work for hire work. One quick note before we jump into the rest of the videos. Throughout this class, I'm going to use the phrase is work made for hire and work for hire interchangeably. They mean the exact same thing. It's just that one of them is a little bit easier to say. Okay, now that we know what a work for hire is, how does it happen? 3. How Work For Hire Happens: under the US Copyright Act, A work can be a work made for hire in one of two ways. You're an employee creating work for your employer or your contractor, creating a specific type of work. And there's a written contract between you and your client about that work. When you're an employee, a work is a work made for hire when it's created in the course and scope of work for your employer in the course and scope of your employment means it's the type of work that you were hired to do, and it is a normal regular part of your job to create work like this. And that kind of makes sense right. You don't need to control the emails that you read as a part of your job, or even the ad layout that you created as a designer for the company. You created that work because your employer paid you to create it, and they need it for a specific purpose. When you're a contractor, the path to work for hire is a little bit more complicated, and that's intentional because copyright confers so many important rights automatically. We don't want you giving them away to somebody else. Accidentally. As a contractor, the work needs to be specifically commissioned by the client. You're the hands bringing the client's specific ideas into being. The work has to fit into one of nine categories that the Copyright Act identifies as eligible for work for hire, and and this is an important part. There must must must be a written contract must. As an employee, your work automatically belongs to your employer. There doesn't need to be a written contract, and it doesn't have to fit into any particular category. But as a contractor, not only does the work have to be a specific type of work, it has to be identified as a work for hire in a written contract that signed before you start the work. Now there are some courts in the United States that say, Hey, as long as you can prove that you all agreed to this work and you agreed that it was a work for hire before you started working, then it's OK for the contract to come later, and while that's fine, I still don't think it's a best practice. I think it's in your interest to make sure that there is a contract before you start your work. Why is that? You want to make sure that your work is clearly described in the contract so that the work for hire terms Onley apply to the work that you want it to apply to, and it doesn't apply to any other type of work. For tips on how to properly described work in a contract, check out the first lesson in the contracts for creative freelancer Siri's. So if a client is pushing you to start work before the contract is signed and it's a work for hire gig, I recommend that you very firmly but politely say, Hey, look, it's in both of our best interests If we hammer out this contract before I start my work because of the law around work for hire in order to make sure that you own what I'm creating for you, we need to have the written contract signed before we start automatically. They'll be motivated to get the contract in place in the next two videos. I'm going to dig into the details of work for hire as an employee and is a contractor. And don't worry, I'm going to get really specific about what those nine categories of work are. But if you'd like to read the definition of work for hire for yourself, you can use this citation. This is the citation for the definition section of the US Copyright Act. It's in Volume 17 of the United States Code in Section 101 If you put 17 U. S. C. One on one in a search engine, you'll find the exact text of the law. OK, now let's get into the details of work for hire when you're an employee. And, by the way, it doesn't matter if your full time part time or if your job even relates to your creative work. 4. When You're An Employee: as an employee. The work that you create in the course and scope of your employment automatically belongs to your employer. No written contract is necessary for your work to be a work for hire. When you're an employee, the work is automatically at work for hire if it's created in the course and scope of your employment. So what the heck is the course and scope of your employment as a default? It's going to be work that is of a similar type or character toe. What you were hired to do. Work that you create under the direction of your employer and work that's created during working hours using the tools and resource is provided by your employer. It doesn't matter if your full time or part time if you're classified as an employee. The things you make as a part of your work belong to your employer. Some employers define what the course and scope of employment is in their contracts or their employee handbooks. So even though a written agreement isn't required, you'll want to review these documents to make sure you have a clear understanding of what your employer is claiming ownership of as you read these documents pay attention to what types of things. The employer is quick claiming ownership of when work, they're claiming ownership of is created and if the work has toe, have certain characteristics to be considered in the course and scope. If you think the definition of any of those areas is too broad, it's worth raising with your employer and trying to negotiate for better language. One fix that I often negotiate for is to adjust the time period of when work is created. Many contracts will say that the employer owns any work created during the term of this agreement. The term of the agreement is usually a year or more, and it doesn't differentiate between when you're at work and when you're not. So I usually changed that language to say something like work created during normal working hours at the direction of the employer. That way, it's really clear that this only applies toe work you're doing for your job, not work that you might complete outside of your job but is very similar to it. If your day job work and your creative work share characteristics, for instance, let's say you work as a storyboard artist at an animation studio. And on your own time you publish your own Web comic. You may want to negotiate a specific exception toe what a work for hire is in your agreement. It can be a pretty easy fix. Its Azizi is adding an extra sentence that says something like the parties agree that employer does not own employees Web comic titled Mine Online. Be careful with this fixed, though. If you start doing other creative work, you'll need to add it to the exception to make sure your job doesn't have a claim to it. Another option is to negotiate joint ownership of certain pieces of your work. This could be particularly helpful for professors and other teaching professionals, because the school wants to own some of your lectures to be able to reuse them or to benefit from them if they're published. But chances are you want to be able to reuse those lectures as well. By declaring in the contract that your lectures are jointly owned by you and the school, you'll both be able to use the work in accordance with the terms that the contract lays out . You just want to be very clear in the contract about who can do what with that work and what responsibility, if any, they have to the other party when they dio. Finally, if you're gonna be creating something for your employer based on work that you've already done, let them know you can let them know that they will own the version of their work. But you're gonna retain ownership of the portion of the work that was created before you started working for them. And, yes, it's always best to get this sort of thing in writing, either in your contract or in a written letter from HR or the legal department. 5. When You're A Contractor: even though it's easier for work to be a work made for hire when you're an employee. Contractors air, usually much more worried about work. Being a work for hire a contractor is someone doing work for someone else. But they aren't given benefits the way that employee is, and the client doesn't control when or how the work gets done. There could be a deadline for the work, of course, and the client can have standards. But they're not telling you that you have to show up in a specific office and work 8 to 5 Monday through Friday. For contractors work to meet the definition of work for hire, there are three basic requirements. One, the work has to fit in tow. One of nine categories to the fact that the work is a work for hire must be captured explicitly in the written agreement, and three, the contract should be signed before work starts. That last requirement is a bit of 1/2 requirement because some courts say that it's okay if the contract wasn't signed when the work started. As long as the client can show that both parties intended for it to be a work for hire before the work started. Still, I recommend that you signed the contract before you start work because it protects your interests. If your clients getting really anxious about starting, just remind them by signing this agreement were protecting your ownership of what I create for you. Okay, what are the nine categories of work that can qualify as works made for higher contribution to a collective work, part of a motion picture or other audio visual work? A translation, a supplementary work, a compilation, an instructional text, a test answer materials for a test and at lis? Yes, really an atlas. Many of these categories are self explanatory, but I want to touch on the three that aren't collective works, supplementary works and compilations. These types of works are defined in the copyright act. In fact, they're defining in the exact same section where work for hires defined 17 U. S. C. Section 101 collective work is a work where there are a number of contributions that air collected into a new work. Each of the contributions can be protected on its own. An anthology is a good example of a collective work. Each contribution can be protected by copyright on its own. And when the contributions air combined, the collective work will have its own copyright. A supplementary work is a work that helps make sense of another work. The Copyright Act points to forwards and books, pectoral illustrations, maps and charts as examples of supplementary works. An infographic created to help explain info in an article is a supplementary work on infographic created to stand on its own is not. Compilations are collections of pre existing works, all collective works or compilations, but not all compilations. Our Collective Works. A database is a good example of a compilation that's not a collective work. The database is made up of data and facts that are not protect herbal by copyright on their own. But if you organize those facts in a creative manner, the database the organization can be protected as a compilation. You may notice that a lot of the work that contractors are hired to do doesn't fit neatly into one of these nine categories. Does that mean your work isn't a work for hire? Even if your contract says it is? Yeah, that's exactly what it means. But as we're going to see in the next video, most contracts have language that give your client ownership of your work anyway. 6. How It Shows Up In Contracts: Whether you're a contractor or an employee, you need to know where to look in your contract to determine what's gonna be a work for hire and what you'll own. The copyright to remember as an employee, the contract isn't necessary for your work to be a work made for hire, but it's very likely the contract will define what work your employer is claiming ownership of. As a contractor. The contract needs to explicitly say the work is a work made for hire, and if it does, you want to make sure it's limited toe work you don't need to own in either type of contract. The work for hire language is most likely going to be in a section titled Ownership Authorship or Intellectual Property work for hire. Language in a contract generally hands three major parts. This is a work for hire list of stuff we want to own is a work made for hire the backup plan. If it's not a work made for hire than by signing this contract, you're transferring ownership of it to us and what this means we control all right title and interest in the work, and you have no rights to it in the work for hire section. They need to use this specific language work made for hire some contracts. Try to avoid using work made for hire by saying the work is specially commissioned. Regardless, you want to pay attention to what it is they're saying is a work for hire. This is generally at the beginning of the sentence and is done in one of two ways. They use a word that's been previously defined in the contract as the work. This could be work delivery, bols services. Something of that nature. The second way is there. They will detail out a long list of types of things you might create for the other party and then say those were work for hire. In either instance. You want to make sure that the definition is limited to the things you'll be making for them at their direction with defined words. You do this in the definition itself, with a long list of seemingly random creations. You do it in that sentence, remember, because the term of the agreement is a period of time, it's not a good way of limiting what work will qualify as a work for hire, it's better to define the work based on how and why it's made. The backup language is most common in contractor agreements. It's there because, as we've learned, work done by a contractor has to fit into one of nine specific categories to qualify as a work for hire. If the work you're doing doesn't meet that legal definition, this language serves as a backup to ensure the client still owns the work. If you're pretty sure that the work that you're doing can't be a work for hire, you can do one of two things. Tell your client that you want to delete the work for hire language to avoid any confusion and replace it with copyright transfer language where the copyright transfers once they've paid you. The second option is to leave the work for hire language in there, assuming that it can't be enforced properly, but then change when the copyright transfer is effective instead of being effective. When you sign the agreement, it becomes effective once they've paid you. Option one is legally more accurate, but option to will likely make your client feel better. Having the copyright transfer Onley once you've been paid protects you from not being paid , and it works best with project based work. If you're providing services on an as needed basis and getting paid after the services air provided, this structure can be a little bit more difficult to use because the client is gonna have access to your services and use them before they've paid you the third part of the language . It's ours, and we really mean it is there to underscore that the client or the employer is the only one with the legal right to use the work? If you want the right to use the work in your portfolio, share working process photos on social media or include your client's name on your website , though this part should include language that says something like, except for the licenses granted to contractor under this agreement, you want the licenses to be detailed elsewhere in the agreement, but you want to make sure this portion of the work for hire language doesn't conflict with the licenses you've been given 7. Protect Yo'Self!: When you agree to do work for hire, you want to make sure that you're properly protected. Specifically, you want to make sure that you have protections that will help you get paid, give you the rights to use the work for self promotion and protect your other work from getting scooped up by the work. For hire terms as an employee, there are lots of laws and regulations that help ensure that you'll get paid. But as a contractor, when you're doing work for hire work, I think it's very important that you get paid early and often require that a portion of the total fee be paid after the contract is signed. This payment should be identified as a deposit, meaning it is part of the total feet, not in addition to it. Whenever possible, identify the deposit as non refundable. This means that if the client terminates the contract early or disappears on you, you get to keep the payment. The deposit ends up serving as a type of kill fee. Make it clear that you can't start work until the deposit is made. In fact, if there will be additional payments while you're working, make it clear that late payments will mean you have to stop work until the payment is made . And if the project gets off track because of a delay like that, it's the clients fault, not yours. Depending on the size of the total fee for the project, it may make sense. Toe have just one other payment at the very end, or to have several smaller payments throughout the course of the project. Always make the trigger for payment. Be something that you do like delivering sketches or delivering the final artwork and not something they do like except your work. If you want to be able to use work for hire work in your portfolio, you're gonna need permission from your client or your employer to do so. Remember, because you're not the copyright owner, you don't have the right to publicly display the work without the copyright owner's approval. The permission should be captured in writing, preferably in the contract. If you book used book digital and physical portfolios, the license needs to mention both. You can often preempt a lot of concern by agreeing to identify the work as belonging to them and with your online portfolio linking back to their home page. You should never, ever, ever, ever agreed to do work for hire on a personal project. Work for hire should be reserved when you are playing with somebody else's toys that is making something out of or based off of something your client or your employer already owns . You can protect your personal work by making sure the definition of work is very clear in your work for hire agreements. Don't assume that your client or employer will do this for you, even if it makes sense. I can't tell you how many times I've had to tell a company's attorney that my client, a graphic designer that they've hired, actually has quite a few clients that she'll be making work of over the term of the agreement. And therefore it's not a really good descriptor of what work the company will own. Your client or employer is gonna be pretty self centered when they describe their rights in their own contract, it's very likely that you're gonna have to tell them their contract language doesn't match up with the reality of your work for them. 8. Is Work For Hire Good For Anything?: work for hire has such a bad reputation. Generally, you might be wondering why you'd ever agree to it as a contractor for works where you're gonna be adding to a work in process work for hire actually makes a lot of sense. You'll be building off of work that doesn't belong to you essentially playing with somebody else's toys. That doesn't make your work less valuable, but it does mean that it makes less sense for you to own it. For projects where a lot of people are contributing to the work, like on a movie or an animated show, for instance, it would be a logistical nightmare if everyone had to transfer their copyright ownership in their contribution to the producer. It's much easier for everyone, honestly, if just one person or one entity owns the work from the very beginning for logo and branding projects, where the clients going to be using the work to describe themselves in a lot of different ways and over a long period of time, work for hire can make sense. It gives your client the flexibility that they need to be able to identify themselves, and it's fine for you as long as you're compensated properly. And that's true for any work for hire project that you dio, you need to be compensated appropriately in general, work for hire work should pay better than work that you own the rights to, because from the very second it's created, the client owns it. That's incredibly valuable and should be reflected in what you're paid. 9. Final Thoughts: when you understand what work for hire really means and when it can apply your in a better position to evaluate the work that you're offered and decide how much you want to charge. Work for hire can have significant consequences for creators, and it isn't right for every job. But as long as you're intentionally agreeing to it, getting paid fairly for your work and limiting what work qualifies as a work for hire, then you don't have to be anxious about doing work for hire. The class project will give you the opportunity to flexes decision making muscles without having to worry about real life consequences. Like with most things in life, the more you practice reading and evaluating work for hire terms, the easier it will be to deal with them when they matter. I hope you found this class helpful. If you did have a small favor to ask, please take two minutes and review this course. I will appreciate it, and all of the other folks on skill share who are looking at this class and trying to decide if it's right for them will definitely appreciate it. As I mentioned earlier, this is the second lesson in the contracts for creative freelancer Siri's. If you haven't taken it yet, there is a link to the first lesson in the class description. The third lesson, which is all about payment terms. The good, the bad, the ugly is gonna be released shortly. If you'd like to get updates on the classes development and be notified when it comes out, please click The link to Follow me should be right above my head somewhere happy contracting.